STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIONE RILEY,

Petitioner,

vs.

RED CARPET INN,

Respondent.

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) Case No. 04-4453

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RECOMMENDED ORDER

This case was heard pursuant to notice on March 25, 2005, by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Dione Riley, pro se

3875 South San Pablo Avenue, No. 1208 Jacksonville, Florida 32224

For Respondent: Subhash Gandhi

Red Carpet Inn

5331 University Boulevard, West Jacksonville, Florida 32216

STATEMENT OF THE ISSUE

Did the Respondent commit an act of discrimination in refusing the Petitioner public accommodations at its motel?

PRELIMINARY STATEMENT

This matter arose when the Petitioner filed a charge of discrimination in a public accommodation with the Florida

Commission on Human Relations (FCHR) alleging that the Respondent had denied her public accommodation on the basis of her race. This complaint was investigated by the staff of the FCHR and a determination of no cause was communicated to the Petitioner, who exercised her right to request a hearing on the matter. The FCHR referred the case to the Division of Administrative Hearings to conduct the formal hearing.

Although the records of the Commission on their face tend to indicate that might be a matter of employment discrimination, it is clear that the Petitioner's complaint relates to denial of public accommodation. It is assumed that this was investigated by the FCHR, and its determination of no cause was regarding the denial of public accommodation.

The case, having been referred to the Division of Administrative Hearings, was set for hearing by video- conferencing and heard as noticed. At the hearing, the Petitioner testified in her own behalf, and presented the testimony of La Shonda Rahmaann, Emma Jean Riley, and Clarence Jones. The Respondent presented the testimony of Ismail McNair, Kaye Cannon, Ursula Brooks, and Subhash Gandhi, the General Manager of the motel who represented the hotel. The Petitioner wrote a letter after the hearing in lieu of making proposed findings which was read and considered.

FINDINGS OF FACT

1. The Red Carpet Inn is a motel located at 5331 University Boulevard in Jacksonville, Florida. Located adjacent to and in front of the property is a topless bar, which is unaffiliated with the motel. The proximity of this bar to the hotel created significant problems for the motel's management because many of the dancers and others working at the bar rented rooms at the hotel. Because of the coming and goings of dancers late into the night and early morning; entertainment of non- guests by dancers; and suspect drug use and sales on and about the premises, the hotel employed an active security detail.

2. The Petitioner, a black female, resided at the hotel in Room 509 for several weeks immediately prior to May 6, 2004. She paid for her room on a nightly basis. Her room rent was frequently paid by persons other than herself. She was observed going from the bar to her room at late hours, and was thought to possibly be working at the bar as a dancer by motel security staff. She was observed visiting with other residents of the hotel at various times including late at night.

3. The staff and manager received complaints from other residents about a person who was identified as the Petitioner. These complaints included, but were not limited to, noise, frequent visitors, and visiting with other guests late at night.

4. As a result of these reports and his concerns about activities in the motel that disturbed other guests and were possibly illegal, the manager decided to refuse the Petitioner further accommodations at the hotel.

5. Clarence Jones, a minister and friend of the Petitioner's family, testified about his visits to the premises. He visited the Petitioner, whom he had known since she was born, to bring her food and money because she was not working. He observed persons who he described as pimps and prostitutes in the vicinity of the motel and bar, together with persons he described as drug pushers. He paid for the Petitioner's room on occasion.

6. Jones and members of the Petitioner's family visited her at the motel, but with the exception of Jones, these visits were during the day. Their testimony indicated that the Petitioner was a good person.

7. The Petitioner testified. She was counseled by Kay Cannon, a black room clerk, to watch the number of calls she made and be careful of her activities because of management's concerns. According to the Petitioner, another desk clerk, Ursula Brooks, used a racial epithet when talking with the Petitioner. Brooks testified, and denied using any racial epithets to anyone, including the Petitioner.

8. The manager and others testified about other residents of the motel who were described as Hispanic and African-

   American.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction pursuant to the provisions of Section 760.10, Florida Statutes.

10. The Petitioner has the burden of proof to show that the Respondent discriminated against her in denying her public accommodations.

11. Public accommodation claims as well as those under the Florida Civil Rights Act, apply the same prima facie standards and burdens of proof as do employment discrimination claims under Title VII. See Hornick v. Noyes, 708 F.2d 321, 325 n. 8

    (7th Cir. 1983), cert. denied, 465 U.S. 1031, 104 S.Ct. 1295, 79

    
    

    L.Ed.2d 696 (1984)(Title II case); Peterson v. BMI Refractories, 132 F.3d 1405, 1412 (11th Cir. 199)(Section 1981 case) Kelly v. K.D. Constr. of Fla., Inc., 866 F. Supp. 1406, 1411 (S.D. Fla.

    1994)(FCRA case). Thus, in order to succeed on such claims, the Plaintiffs must show the following elements:

    1. That they are members of a protected class;

       
       

    2. That they attempted to afford themselves the full benefits and enjoyment of a public accommodation;

    3. That they were denied those benefits and enjoyment; and

       
       

    4. That similarly situated persons who are not members of the protected class received the full benefits or enjoyment or were treated better. United States v. Lansdowne Swim Club, 894 F.2d 83, 88 (3d Cir. 1990). Once a prima facie case is established, the burden of persuasion shifts to the Defendants to proffer a legitimate business reason for the conduct at issue. The Plaintiffs cannot prevail unless they can demonstrate that the proffered reason is pretextual. See Hornick, supra, at 325

    
    

12. The Petitioner showed that she was in a protected class as a woman and as an African-American. There is no dispute that on May 6, 2004, the management of the Red Carpet Inn denied the Petitioner the right to reside further at the facility.

13. If one does not consider the evidence presented that there were other guests in residence who were African-American, Petitioner made a prime facie showing of discrimination. However, there is no dispute that the Petitioner previously resided at the motel for approximately 21 days; and that there were many residents of many races in the motel, to include African-Americans. Therefore, the Petitioner failed to make a prima facie showing.

14. Further, the Respondent presented evidence that it denied the Petitioner further accommodation at the motel because of complaints about her and concerns about her behavior. Based

    upon the evidence received regarding the conditions in and around the motel, the Respondent's concerns were reasonable and the action taken in denying the Petitioner further accommodations was reasonable, even if the management misapprehended the facts or there were mistakes in identity.

15. The Respondent having shown a legitimate, non- discriminatory reason for its actions, the burden is upon the Petitioner to show that the grounds put forward by the Respondent were pretextual. The Petitioner failed to make such a showing.

16. The Petitioner, having failed to make a prima facie showing, and the Respondent having shown a legitimate, non- discriminatory reason for its actions, which the Petitioner did not show to be pretextual, the Petitioner's claim is not proven.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter its final order dismissing the Petitioner's Petition for Relief.

DONE AND ENTERED this 25th day of May, 2005, in Tallahassee, Leon County, Florida.

S

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 2005.

COPIES FURNISHED:

Dione Riley

3875 South San Pablo Avenue, No. 1208 Jacksonville, Florida 32224

Subhash Gandhi Red Carpet Inn

5331 University Boulevard, West Jacksonville, Florida 32216

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 04-004453

Orders for Case No: 04-004453